[ v18 p340 ]
The decision of the Authority follows:
18 FLRA No. 44 MISSOURI NATIONAL GUARD OFFICE OF THE ADJUTANT GENERAL JEFFERSON CITY, MISSOURI Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R14-68, 71, 73 and 97 Charging Party Case No. 7-CA-30494 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, the parties' contentions, and an amicus curiae brief filed by the Office of Personnel Management (OPM), /1/ the Authority finds: The complaint alleges that the Missouri National Guard, Office of the Adjutant General, Jefferson City, Missouri (the Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /2/ by refusing to negotiate over a flexitime plan as requested by the National Association of Government Employees, Locals R14-68, 71, 73 and 97. The stipulated record reveals that each of the Unions, at all times material herein, has been certified as the exclusive representative for a bargaining unit of the Respondent's employees, and that collectively they comprise the Missouri Council of Locals, National Association of Government Employees (the Council). At all times material herein, the Council and the Respondent have been parties to a collective bargaining agreement, which became effective on November 28, 1979. This agreement, pursuant to Article 23, Section 3, was automatically renewed in November 1982 for another three year term. The Council sought to negotiate a new contract, and/or amend the current agreement, but its request to do so was untimely according to the language in Article 23, Section 3, and therefore was rejected by the Respondent. Article 23, Section 2 of such agreement provides: By mutual consent of the Parties, this Agreement may be reopened at any time during its duration, to add, delete or modify sections or articles, as may become necessary due to changes of existing regulations, policies, laws, or the Act, or the introduction and implementation of new policies, laws or Executive Orders. To reopen, the Party wishing to do so will submit to the other Party, in writing, at least 30 days prior to the desired reopening date, its reasons for making the request, and an agenda for their disposal. On January 11, 1983, Robert B. Phillips, spokesperson for the Council, submitted to the Respondent a written request, pursuant to Article 23, Section 2, to reopen the agreement described above to permit the parties to negotiate concerning the Federal Employees Flexible and Compressed Work Schedules Act of 1982. On February 16, 1983, the Respondent denied this request stating, in part, that "within the provisions of Article 23, Section 2 of the (contract), there (had) been no new law or change in existing law or policy which would permit or require reopening of the contract for the establishment of alternative/compressed work schedules for technicians in the Missouri National Guard." By letter dated June 21, 1983, Phillips, the Council's representative, requested the Respondent "to negotiate a flexitime plan under the FLRA's doctrine of mid-term negotiations." This request was not prompted by any actual or contemplated change by the Respondent in conditions of employment of the bargaining unit employees herein. The Respondent by letter dated June 28, 1983, refused and continues to refuse to negotiate over any flexitime plan, including any arrangement whereby employees have some choice as to their starting and quitting times. The parties' collective bargaining agreement contains no provisions for flexitime and the subject of flexitime was neither raised nor discussed during the negotiations leading to such agreement. The Respondent essentially asserts that the Statute does not require it to negotiate over union-initiated proposals during the life of a collective bargaining agreement between the parties absent a management-proposed change in unit employees' conditions of employment, and, since it has proposed absolutely no changes in this regard, it has no statutory obligation to engage in mid-contract negotiations as requested by the Council herein. Further, it contends that even if a union has a statutory right to demand bargaining over union-initiated proposals as in the subject case, the Council, pursuant to certain provisions in the parties' contract, waived any right to demand bargaining on the matter herein. On the other hand, the General Counsel and the Council argue, in their briefs, that the Statute entitles the Council to initiate mid-term negotiations over the subject of flexitime, and further that the Council did not clearly and unmistakably waive its right to mid-term negotiations as asserted by the Respondent. In Internal Revenue Service, 17 FLRA No. 103 (1985), where it was alleged that the agency therein violated the Statute by refusing to negotiate concerning proposals submitted by the union during the term of an existing collective bargaining agreement, which proposals were not related to any changes initiated by the agency, the Authority found that there was no statutory obligation to bargain over such union-initiated proposals and that the agency's failure to do so did not constitute a violation of the Statute. In the instant case, the record reveals that at all times material herein a collective bargaining agreement was in existence between the parties; that the Council requested "mid-term negotiations" over a flexitime plan where there had been no change in unit employees' conditions of employment by the Respondent; and that such request was not submitted in accordance with the reopener provision of the parties' agreement. Therefore, the Authority concludes in these circumstances, and based upon the rationale contained in Internal Revenue Service, supra, that the Respondent was under no obligation to bargain as requested by the Council and that the Respondent's failure to do so did not constitute a violation of section 7116(a)(1) and (5) of the Statute as alleged. Accordingly, the Authority shall order that the complaint be dismissed. /3/ IT IS ORDERED that the complaint in Case No. 7-CA-30494 be, and it hereby is, dismissed. Issued, Washington, D.C., June 6, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ OPM's request to file an amicus curiae brief, pursuant to section 2429.9 of the Authority's Rules and Regulations, is hereby granted and the brief considered herein. /2/ Section 7116(a)(1) and (5) of the Statute provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /3/ In view of the Authority's finding herein, it is unnecessary to address the Respondent's contention that the Council waived its right to negotiate a flexitime plan.